GENE CHARLES ROLAND and MELINDA FAITH ROLAND, Trustees of the Roland Family Trust Plaintiffs and Appellants,
FRED ALLEN DAVIS, SR. and BARBARA DAVIS, Defendants and Appellees.
Submitted on Briefs: March 20, 2013
APPEAL FROM District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 09-282 Honorable Jeffrey H. Langton, Presiding Judge
For Appellant: Stephen R. Brown, Elena J. Zlatnik, Garlington, Lohn & Robinson, PLLP; Missoula, Montana
For Appellee: Dustin M. Chouinard, Markette & Chouinard, P.C.; Hamilton, Montana
Brian Morris, Justice
¶1 Appellants Gene Charles Roland and Melinda Faith Roland, Trustees of the Roland Family Trust Dated March 4, 1994 (collectively "Roland") appeal from the order of the Twenty-First Judicial District, Ravalli County, in favor of Appellees Fred Allen Davis, Sr. and Barbara Davis (collectively "Davis") regarding a dispute over the existence of a ditch easement. We affirm.
¶2 We address the following issue on appeal:
¶3 Whether the District Court properly determined that Roland had no ditch easement across property owned by Davis?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Roland began buying property in Ravalli County in 1991. Roland purchased a 50- acre parcel from Roger and Beverly Russ (collectively "Russ") in 1993. The warranty deed for this 50-acre parcel from Russ contains no express mention of water rights, ditch easements, or appurtenances. Roland nevertheless believed that a water right from Bunkhouse Creek came with the property. Roland further believed that a ditch easement existed to transport the water from Bunkhouse Creek to his property. T he parties completed and filed a water right transfer certificate as part of the closing documents.
¶5 Roland never has irrigated any of the 50-acre parcel. He has used the 50-acre parcel for grazing of cattle and horses. Roland participated in a U.S. Forest Service fire reduction program sometime in the mid-2000s. The program encouraged property owners to remove new growth and undergrowth in an effort to reduce the chances of wildfire. Roland removed new growth and undergrowth from the entire 50-acre parcel. R oland left trees growing in the newly created meadows with the expectation that he later would harvest the trees as a cash crop.
¶6 Davis purchased real property from Russ in 1994. The Davis property lies adjacent to, and directly west of, the 50-acre parcel owned by Roland. The Smith Ditch historically had crossed the Davis property. No ditches were observable on the Davis property at the time of the purchase in 1994. No water rights from Bunkhouse Creek attached to the Davis property.
¶7 An existing road provides Davis with access to the house on his property from the public road. Davis applied a "road base" to the access road to the property. Davis did not widen the access road or remove any culverts. Davis replaced one culvert that had collapsed where Bunkhouse Creek crosses the access road. Davis found no other culverts that would indicate the presence of any ditch remnants on the property.
¶8 Davis took advantage of the same fire reduction program offered by the U.S. Forest Service in the mid-2000s. Davis observed for the first time traces of an old ditch across the property after the tree thinning work. T he tree thinning work ...